Appellate Division Cases
(Criminal)
PARTIES
Md. Fazar Ali …………………………….……………Appellant
-vs-
The State, represented by the Deputy Commissioner, Natore…………Respondent
JUSTICE
Md. Ruhul Amin . J
Syed J. R Mudassir Husain. J
JUDGEMENT DATE: 19th November, 2003
The Prevention of Corruption Act, 1947 (Act II of 1947). Section 5(2).
Penal Code (Act XLV of 1860). Section 406, 409/109.
Except the statement of the said convict there was no material against the appellant
to find him guilty of the offence charged for the alleged mis-appropriation of the wheat. It was also the contention of the appellant that the statement of Azizur Rahman as to giving 5 mounds of wheat to the appellant was not corroborated by the witness examined in the case…………………………. (5)
Criminal Appeal No. 8 of 2000 (From the Judgment and order dated July 15. 1999 passed by the High Court Division Criminal Appeal No. 2256 of 1995).
S. S. Haider, Senior Advocate, instructed by Md. Aftab Hossain .Advocate on record……….. For the Appellant.
Farroq Ahmed, Deputy Attorney General, instructed by Sufi a Khatun, Advocate-onrecord ………………….For the respondent
JUDGMENT
1. Md. Ruhul Amin, J :- The appeal, by leave, is against the judgment and order dated
July 15, 1999 of a Single Bench of the High Court Division in Criminal Appeal No . 2256 of 1995 dismissing the same . The appeal was filed against the judgment and order dated November 15, 1995 of the Court of Divisional Special Judge, Rajshahi Division, Rajshahi, in Special Case No. 8 of 1992 convicting the appellant under section 409/109 of the Penal Code and sentencing him to suffer 4 years rigorous imprisonment and to pay fine of Tk. 1639.20 in default to suffer 5 month rigorous imprisonment.
2. Facts, in short, are that on December 2, 1988 the chairman of No.2 Dahia Union
Parishad because of his illness authorized accused Azizur Rahman, member of ward No. 2 to lift 15.62 metric tons of wheat for distribution amongst the VGF card holders, the said accused Azizur Rahman lifted the wheat in presence of the chairman of the Union Parished (P.W.I) and the wheat so lifted was stored in dahia Government Primary School. On the following morning i.e. December 3, 1988 chowkider Lakhan Chandra Baddayakar
informed the chairman that accused Azizur Rahman, Monohar Ali Md. Fazar Ali ( appellant), Ajut Ali, Nawser Ali and Afzal had taken away some quantity of wheat and thereupon the chairman went to Dahia government Primary School and found 55 bags in a room of the School and 135 bags in the school compound, The chairman stored 135 bags in a room of the school. The chairman came to know from chowkider Sree Lakhan Chandra Baddayakar as well as from the local people that some quantity of wheat being carried by a boat was detained by Ajut ali in Berabari Village, The Chairman on December 4, 1988 having not found the Upazilla chairman informed the matter to
Upazilla Mirbahi officer and on the order of the Upazilla Nirbahi officer an officer of the Social Welfare Officer, an army Personnel and a journalist accompanied the chairman of the Union Parished for recovery of wheat which was taken away from the Dahia Government primary School and the wheat that was detained in Berabari as well as accused Ajut ali was brought to the Dahia government Primary School. On weighing the entire wheat there was shortage of25 mounds and 19 seers. It was the prosecution case that the accused persons had misappropriated the said quantity of wheat.
3. P.W. 1 Chairman of No.2 Dahia Union Parishad lodged the FIR about the misappropriation of wheat by the appellant and others. The Investigating agency on completion of investigation submitted charge sheet against the appellant and six others under section 406/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 . In due course the records were sent to the court of Divisional Special Judge, Rajshahi Divion, Rajshahi. The learned Special Judge framed charge against the appellant and six others under Section 406 and 409 of the Penal Code red with Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) . Prosecution in all examined 10 witnesses including the official witness, police personnel (P. Ws. 8.10) and tendered P. Ws .4 and 7. On conclusion of trial the court of Divisional Special Judge, Rajshahi Division, Rajshahi by the judgment and order dated November 15, 1995 convicted the appellant and six others under Section 409 read with Section 109 of the
Penal Code and further convicted accused Azizur Rahman (member of Ward No.2) and
Srre Lakhan Chandera Baddayakar (Chowkider of the Union Parishad) under Section 5(2) of Act II of 1947 and sentenced all of them to suffer rigorous imprisonment 4 years and to pay fine of TK. 16,000/- each in default to suffer further 5 months rigorous imprisonment under section 409 of the Penal code. The learned Divisional Special Judge did not pass any separate sentence under Section 5(2) of Act II of 1947. The other accused Nawser Ali was found not guilty of the offence under Section 409/109 of the Penal Code. The appellant and Sree Lakhan Chandera Baddayakar filed Criminal
Appeal No. 2256 of 1995 against the Judgment and order of the court of Divisional Special Judge. Another appeal, Criminal Appeal No. 2321 of was filed 2 other convicts, Monohar Ali and Afzal.
4. The appeals were heard together by a single Bench of the High Court Division and the
learned single Judge allowed the Criminal Appeal No. 2256 of 1995 in part and thereupon acquitted Sree Lakhan Chandra Baddayakar. The learned Single Judge maintained the conviction and the sentence of Md. Fazar Ali. The High Court Division dismissed the criminal Appeal No. 2321 of 1995. As against the judgment and order of the High Court Division the appellant alone has filed the appeal.
5. Leave was granted to consider the contention of the appellant that there was absolutely
no evidence against him and it was also he contention of the appellant that accused Azizur Rahman reported that the gave 5 mounds of wheat to the appellant and except the statement of the said convict there was no material against the appellant to find him guilty of the offence charged for the alleged mis-appropriation of the wheat. It was also the contention of the appellant that the statement of Azizur Rahman as to giving 5 mounds of wheat to the appellant was not corroborated by the witness examined in the
case. It has been contended that not a single witness has stated that he saw the appellant in taking away wheat. The High Court Division while dismissing the appeal of the appellant and 2 other convicts placed reliance on the evidence of P. Ws. 1. 2. 3.5. and 6.
6. P.W. 1 has stated that on December 3, 1988 he was informed by the chowkider
Lakhan Chnader Baddayakar that appellant and six others were removing wheat from Dahia Government primary school, and on his going to the school compound he found 55 Bags in a room of the school and 135 sacks in the school compound. It has also been stated by P.W. 1 that the came to know from chowkider Lakhan Chandra Baddayakar and the local People that some quantity of wheat was carried by a boat and the same was detained at Berabari and that accused Ajut Ali was also detained there . P. w. 2 an officer of the Social Welfare Dirctorate of Natore District on being instructed by the Upazilla Nirbahi officer inquired into the matter of removing wheat which was lifted for distri-;
bution amongst the VGF card holders and was stored in Dahia government Primary School and submitted his report. This witness put into evidence photocopy of the report. It may be mentioned whatever materials were collected by P. W 2 in the Course of investigation were collected behind the knowledge of the appellant and the appellant had no opportunity to test the veracity of the statements of the persons on the basis of whose statement the report was prepared and submitted to the Upazilla Nirbahi Officer and thereafter put into evidence as Ext. 2 in the case . P. W. 3 has stated that he along with P. Ws. 4, 5 and 7 as well as others went to Dahia Government Primary School and saw
appellant and 5 others were stealing wheat from the sacks stored in Dahia government primary school.
7. The witness has further stated that Ajut Ali and Afzal took away 18 sacks of wheat by a boat and finally he and others detained the said boat at Berabari. The witness has further stated that accused Ajut Ali gave undertaking to return the mis appropriated wheat. In cross examination on behalf of the appellant the witness stated that at the time of incident he was a member of the Union Prishad from village Dahia and Bahadur informed him about stealing’ of wheat and thereupon he, Ajit and Nurul Islam proceeded
to Dahai Primary School and witnessed the incident from a distance of 2 ‘#!'(Bnagla) P.W. 5. Nawser Ali has stated that in the mid night of December 2, 1998 while he was sleeping Union Parishad member, Khair Uddin called him and told him that wheat’s stored in Dahia Government Primary School were being removed and he and Khair Uddin proceeded for Dahia Government Primary School and noticed the boat with 18 sacks of wheat on the south of Dahia Government Primary School and they noticed the boat from distance of quarter mill and they detained the boat and Ajut Ali at Berabari and kept the wheat and the boat as well as Ajut Ali in the custody of Azimuddin and thereafter came at Dahia government Primary School and met Akher Chowkider
(since deceased) who on query told him and his companion that appellant and 4 others in collusinon with each other removed the wheat. It may be mentioned P. W 3 kahir Uddin has not stated that in the compound of Dahia government primary school chowkider Akher stated that the appellant and others in collusion with each other removed the wheat illegally. It is in the evidence of P. W. 5 that he and khair Uddin together after keeping the boat with 18 sacks of wheat in the custody of Azimuddin returned to the compound of Dahia Government Primary School .
8. So P. W. 5 has not been corroborated by P. W. 3, who in the sequence of evidence of P. W 5 was with him while Akher chowkider informed the witness i.e. P.W. 5 about lifting of wheat by the appellant and others illegally. P.W. 6 has stated that in the night of December 2, 1988 at about 10/11 he was catching fish to the west side of Dahia Government Primary school and then P. W 3 khair Uddin told him that Union Parishad member Aziaur Rahman would steal some wheat from the wheat stored in Dahia government Primary school for distribution amongst the VGF card holders and then the
witness inquired of him where from he (khair Uddin) got the information and then he (khair Uddin) told him that Akher Chokider had informed him and thereupon witness told him since he was catching fish, so in case of necessity he be called. The witness has stated that P. W 3 told him that the had already kept other persons on watch and that at about 3 in the night P. W 3 called him and told him that wheat was being removed and thereupon he along with khair Uddin and others proceeded towards the dahia government primary school and noticed a Shallow Engine Boat loaded with wheat going away and after pursuit detained the boat at Borebari as well as Ajut Ali t.nd Afzal and that on being interrogated they disclosed that Aziz Member, Lakhan chowkider, Fazar Ali and
Monohar in collusion with each other had delivered the wheat to them.
9. The witness further has stated that they kept the boat loaded with wheat as well as
accused Ajut Ali and Afzal in the custody of Azimuddin. The statement of the witness that accused Afzal and Ajut Ali on being interrogated stated that the appellant and others in collusion with each other removed the wheat and handed over the same to accused Afzal and Ajut Ali and thereupon they were carrying the same by boat is not corroborated by P. W 3 who was with this witness at the time of detention of the boat loaded with wheat and accused Ajut Ali and Afzal. P. W. 3 in his evidence has not stated that on the query of p.W. 5 accused Ajut Ali and Afzal told them that the wheat in the boat was handed over to them by the appellant and others and thereupon they were taking away the
wheat. P. W 3 has stated that he and others detained the boat loaded with 18 sakcs of wheat and Ajut Ali and Afzal were in the boat. So whatever the accused Ajut Ali and Afzal, as claimed by P.W. 5, said to him, but same has not been supported by P. W. 3. and others. So it is seen that although High Court Division based its decision in respect of the appellant while dismissing his appeal on the evidence of P. Ws. 1, 2, 3, 5 and 6 but from the discussions of the evidence of the said witnesses, as made above, it is seen in fact there is nothing in their evidence to implicate the appellant in the incident alleged
by the prosecution and thereupon appellant and other were tried for being involved, as claimed by the prosecution, in the incident i.e removing or stealing of wheat, mis appropriation of some quantity of wheat from the total quantity of wheat lifting for distribution among the VGF card holders and stored in Dahai government Primary School. In the background of the discussions made hereinabove we find merit in the appeals. Accordingly the appeal is allowed.
Ed
Source: I ADC (2004), 264